' A case under section 302/379/34, P.P.C., was registered against Allah Ditta, Muhammad Anwar and Muhammad Bashir at Police Station Noshera Virkan vide F.I.R. No,313, dated 29-9-1990 for an occurrence which took place at 2-00 p.m. On 29-9-1990 in the area of village Sadhoke, District Qujranwala for the murder of one Munshi Khan. The occurrence was reported by Faqir Muhammad complainant, a brother of the aforementioned deceased. The F.I.R. Was registered at 3-30 p.m. On the same day at the police station which was at the distance of 7 miles from the place of occurrence.
2. The aforementioned accused were tried by Ch. Riaz Ahmad, the then learned Additional Sessions Judge, Gujranwala, who vide his judgment dated 18-5-1993 convicted Allah Ditta and Muhammad Anwar i,e, the present appellants under section 302/34, P.P.C. And sentenced them to undergo imprisonment for life with a fine of Rs,30,000 each or in default to undergo 2 years R.I. Each. It was also directed that half of the fine, if realized, shall be paid to the legal heirs of the deceased Munshi Khan as compensation under section 544-A, Cr.P.C. The benefit of section 382-B, Cr.P.C. Was also given to both the convicts/appellants. The third accused namely Muhammad Bashir was, however, given benefit of doubt, and acquitted.
3. The appellants/convicts have filed this appeal to impugned the judgment aforesaid.
4. The complainant Faqir Muhammad also filed a revision petition under section 439, Cr.P.C., whereby, he prayed for enhancement of sentence of imprisonment for life awarded to the appellants/convicts to that of the sentence of death. The complainant also prayed that the acquittal of Muhammad Bashir (acquitted accused) be also set aside and he be convicted and punished for the murder of the deceased.
5. Since the appeal and the revision petition have arisen out of the same judgment, therefore, those are proposed to be decided through this common judgment.
6. It was alleged in the F.I.R. (Exh.PB) that father of the appellant/convict Allah Ditta namely Muhammad Siddique was murdered on 2-3-1984. In that murder case, the complainant and the deceased Munshi Khan along with others were arrested and tried. All of them were, however, acquitted after the trial in the aforesaid murder case. About three or four days prior to the occurrence, the pet dog of the deceased was lost. On the day of occurrence, the deceased armed with his licensed 7 MM rifle at about noon's time was searching for his dog while riding a cycle. At that time, the complainant along with Akbar son of Wassan Din Awan resident of Mughalpura, Lahore and then residing at Sadhoke was also proceeding to participate in a fair (Mela). In the nearby field of Rana Liaqat Ali, another brother of the deceased namely Dil was grazing his goats.
Munshi Khan was proceeding to the village on a cycle near the 'Dera' of aforesaid Rana Liaquat Ali.
The appellants/convicts namely Allah Ditta and Muhammad Anwar along with Muhammad Bashir (acquitted accused) were standing along with their cycle near the field of Muhammad Bashir Gujjar on the aforesaid 'Kachaha' path. As soon as the deceased reached near them, the appellant Allah Ditta fired at him with his carbine from a close range hitting the victim on the right side of his waist and head. After making the fire, the aforesaid Allah Ditta took off the rifle from the left shoulder of the deceased. Thereafter, the acquitted accused Muhammad Bashir gave dagger blows one after the other , to the deceased hitting near his right eye and forehead. The appellant Muhammad Anwar had also fired from close range on the deceased when the latter had fallen down. The fire made by Anwar also hit the right side of back of the deceased. After completing the occurrence, all the three appellants escaped from the spot while leaving their cycle and taking away cycle of the deceased. The P.Ws. Tried to follow the accused but they raised lalkara that if anybody came near to them, he would be killed. The F.I.R. Was lodged, as pointed out above, at 3- 30 p.m. At the police station. The deceased died on the spot.
7. The prosecution examined Faqir Muhammad complainant as P.W.2 and an eye-witness Dil Muhammd.As P.W.3 to prove the ocular account of occurrence.. The recovery of weapons of offence carbine (P.7) from Allah Ditta and carbine (P.8) from Muhammad Anwar were effected and secured vide memos (Exh. PF and Exh. PO) respectively. Th medical evidence consisting of the statement of Dr. Ali Muhammad (P.W.8) was recorded to prove the postmortem report (Exh.PK) and the diagram of injuries (Exh.PK/1). The police officials including the Investigating Officer were also examined to bring on record the investigation conducted in the case.
8. After considering the evidence, the learned Trial Court rendered the impugned judgment.
9, Learned counsel for the appellants has submitted in his arguments that both the eye -witnesses are the real brothers of the deceased who were admittedly inimical to- the accused/appellant as the latter's father was for which they were arraigned. It was also contended that besides being inimical, they were interested and chance witnesses as they were found at the place of occurrence in a casual manner as one of them was going to participate in the fair and the other was grazing his goats in the nearby field. As such, it was contended that both these witnesses did not see the occurrence but were later on made eye-witnesses to strengthen the prosecution case. Even otherwise, those witnesses were not allegedly trustworthy because there was no corroboration of intrinsic nature to support their testimony ' in respect of the ocular account of occurrence. The evidence of such uncorroborated interested businesses ought to be allegedly considered with due care and caution before accepting it to bring home an offence punishable with capital sentence. It was further contended that the occurrence had allegedly taken place in the broad daylight in a populated area near a village, therefore, the absence of any independent person to have seen the occurrence would make the prosecution case highly doubtful. Secondly, it was contended that the motive was also a concocted story without any substance. It was allegedly not only far-fetched but was basically weak and imaginary. In this regard, it was submitted that murder of father of Allah Ditta appellant had taken place on 2-3-1984, whereas, the present occurrence took place after more than 6-1/2 years. Even the F.I.R. Is silent as to how the occurrence had started. The fire attributed to the assailant was made at random on seeing Allah Ditta. Allegedly there was nothing on record to show that infect the present occurrence had taken place in pursuance of the motive disclosed in the F.I.R. Hence, the occurrence was without motive or at least was based on a very weak and far-fetched incident The recovery of weapons of offence was allegedly made in total violation of section 103, Cr.P.C., as no independent person from the locality was associated nor the weapons were sent to the Ballistic Expert for analysis to come to the conclusion that the same were used during the occurrence. In this regard, it was also contended that admittedly no empty vas recovered from the spot, hence the recovery of the weapons i,e, carbines was may an exercise in futility on the part of the prosecution; and it is for that reason that the earned Trial Court had also discarded such recovery. The whole story of the prosecution allegedly hinged on chances such as loss of log of the deceased who came out in search of it and incidentally found his two brothers ear the place of occurrence, as pointed out above. All these chances of their assemblage together would show that a story was built up order to involve the present appellants/convicts with whom they had a proven enmity. The medical evidence was Is stated to be at variance with the ocular account of occurrence. In this respect, it was dated that it seemed impossible that two assailants would select similar weapons and rill also choose the same part of the body of we victim while making firing at him. It was Limited that it did not make any sense that Muhammad Anwar appellant/convict would also select the right side of waist of the ceased to make fire while the latter had ready fallen on the ground on receiving the were from Allah Ditta appellant/convict. It was, therefore, contended that in fact there as some unknown single assailant who had red at the deceased but the appellants/convicts have been made scapegoat I account of enmity Likewise, Muhammad is her (acquitted accused) was allegedly necessarily involved. He was found no cent during the investigation which further reflected that a balaboured attempt is made by the complainant to rope in their enemies in the case after losing their brother the hands of some unknown assailant. It therefore, submitted that case of the prosecution against both, the appellants/ convicts was highly doubtful and the impugned judgment was not liable to stand because the same set of evidence which was disbelieved qua the acquitted, accused could not be utilized to record conviction of the present appellants/convicts. It was, therefore, prayed that the appellants deserve to be given benefit of doubt and acquitted.
10. Learned counsel for the State assisted by learned counsel for the complainant also argued at considerable length and submitted that the appellants/convicts were rightly convicted but were not adequately punished after their conviction under section 302/34, P.P.C., for which a prayer was made in the connected revision petition that the sentence for imprisonment for life awarded to them be enhanced to the sentence of death. It was also contended that acquittal of the third accused namely Muhammad . Bashir was also not warranted by the evidence on record which fully proved his involvement in killing the deceased. While advancing arguments, it was contended that in this case, the F,I.R. Was lodged promptly at the police station within 1-1/2 hour. The police station was at the distance of 7 miles from the place of occurrence, therefore, keeping in view the distance and other attending circumstances prevailing in the rural side, the F.I.R. Was recorded with promptitude leaving no chance for fabrication or padding up of the case. The occurrence had taken place during the broad day light and hence, there was no possibility of the mistaken identity by the eye-witnesses to whom the accused were previously well-known. All the accused were named in the F.I.R. Along with their weapons by the eyewitnesses and a specific role was attributed to each one of them in assaulting the deceased. The motive was also allegedly clearly stated in the F.I.R. Which was even not denied by the other side. The medical evidence allegedly fully corroborated the ocular account of occurrence given by the eyewitnesses and as such, there was a substantive piece of corroboration for the involvement of the appellants/convicts in the case. The mere fact that the P.Ws. Were brothers of the deceased would in no way adversely influence their testimony because, though admittedly related but were also natural witnesses to the occurrence.
One was grazing his goats in a nearby field and the other was passing near the place of occurrence as he was going to participate in a fair (Mela). These types of witnesses cannot be allegedly dubbed as chance witnesses nor would they be considered interested or biased witnesses in the light of the motive alleged in the F.I.R. The appellant Allah Ditta had lost his father about six years back for which the complainant side was challaned and acquitted. As such normally the accused would nurse grudge and could have taken the law in their own hands in order to take revenge of the aforesaid murder. Both the appellants/convicts are closely related.
Muhammad Anwar being nephew of Allah Ditta would naturally join hands to kill the killer of his uncle and father of his co-accused. The mere fact that one of the accused namely Muhammad Bashir was acquitted would not effect the merits of the prosecution case adversely as - the principle of sifting the grain from the chaff has been universally recognized by the Superior Courts of this country. Reliance was placed on PLD 1976 Supreme Court 452 Muhammad Sharif v.
Muhammad Javed alias Jeda Tedi and 5 others, 1998 SCM R 1749 (Supreme Court of Pakistan)
Piyaro v. The State and 1998 SCM R 1823 (Supreme Court of Pakistan) Sardar Khan and 3 others v.
The State to support the foregoing points.
11. It was also contended that although the recoveries of carbines were discarded by the learned trial Court but such recoveries and the corresponding injuries found on the person of the deceased provided confirmatory circumstance to the eye-witnesses. Reliance was placed on 1973 SCM R 83 Sharif and another v. The State. Another confirmatory factor was the alleged absconsion of the accused persons for more than two months before they were arrested on 23-11-1990. This also showed that they were involved in the occurrence and had, therefore, gone underground. Since the motive was admitted by both the sides as father of Allah Ditta was murdered for which the deceased and the complainant side were challaned, therefore, this too provided a corroborative factor when read with the medical evidence which supported that the deceased suffered firearm injuries at the seats as pointed out by the eyewitnesses during their testimony. Reliance was placed on PLD 1993 Supreme Court 895 Muhammad Hanif v. The State, PLD 1977 Supreme Court 557, Roshan and 4 others v. The State and PLD 1976 Supreme Court 44 Mst. Razia Begum v. Hijrayat All and 3 others. It was further contended that the mere fact that nobody else from the public had come forward to depose against the appellants/accused would not be material keeping in view the social conditions prevalent in our society where strangers avoid to poke their nose in the bloody affairs of other people. This is surely a lack of civic sense amongst the people but that would not effect adversely the testimony of the eyewitnesses who though related but would also inspire confidence. In this regard, reliance was placed on PLD 1976 Supreme Court 53 Yaqoob Shah v. The State and PLD 1976 Supreme Court 291 Muhammad Iqbal alias Javed Iqbal v. The State. Both the appellants/convicts allegedly acted it furtherance of their common intention to cause murder of the deceased, therefore, both of them were vicariously liable apart from being individually amenable to law.
12. I have considered the arguments addressed from both the sides and have also carefully gone through the evidence drought on record. It is true that in this case, the only two eye-witnesses, examined at the trial, were the real brothers of the deceased. It is also true that the complainant side including the deceased was arraigned for the murder of father of Allah Ditta appellant/convict in 1984 and were acquitted on a trial. It is, therefore, clear that both the sides were having blood enmity and, therefore, it would call for extremely cautious approach to decide about the value of the testimony of the eyewitnesses. Seeing in the past perspective, it would be clear that infect Allah Ditta and his family members would be aggrieved of the murder of their father and consequent acquittal of his killers. This is but natural that if provided with an opportunity, they would not spare the killers of their father. The deceased was one of the killers arraign for deceased father ". Of Allah Ditta appellant/convict. It is also true that enmity is a double-edged weapon and would call for extreme caution and care while analysing the evidence of inimical witnesses. In the instant case, as pointed out above, the motive was actually with Allah Ditta appellant/convict and his family members because the complainant side had also earned acquittal and would not be much aggrieved qua the accused side. Though the brothers of the deceased are inimical to the accused side but it will be natural on their part to see that the actual killer of their deceased brother is brought to the book and punished. This natural instinct would actually smoother their impulse of falsely implicating the appellants/convicts and leaving scot-free the actual killer if he was someone else. There can be no doubt about the identification of the killers of the deceased as the occurrence had taken place in the middle of the day and the parties were known to each other. It cannot be, therefore, successfully urged that in fact some unknown killer had committed the murder of the deceased and out of sheer enmity, the present appellants were implicated in the case. Even otherwise, the F.I.R. Was lodged at the police station promptly after the occurrence i,e, within 1-1/2 hour. In such a situation, it cannot be said that the complainant side had a reasonable opportunity to cook up their case falsely or had sufficient time for deliberation to mint up a false story. The mere fact that Faqir Muhammad was going to participate in a fair and Dil Muhammad P.W. Was grazing his cattle in a nearby field would not make them chance witnesses because they admittedly belonged to the same village where the murder was committed. Had they come from outside or belonged to a different locality, then of course, the plea of their presence by chance would have raised some suspicion about truthfulness of their testimony. As such a person belonging to the same locality and passing by the place of occurrence would not be rendered as a chance witness. Even a passerby belonging to the same locality would be a good witness in the eyes of law without becoming or dubbed as chance witness. It is true that no empty was picked up from the place of occurrence, therefore, the recovery of similar carbines from the appellants/convicts would be of no avail to the prosecution and had rightly been so held by the learned trial Court. However, the prompt lodging of the F.I.R. Would be a very strong confirmatory circumstance about the presence of the eye-witnesses to see the occurrence and their evidence cannot be easily brushed aside only because they are related to the deceased or there is some enmity over the murder of father of Allah Ditta appellant/convict. The motive having been admitted from both the sides can also be utilized as a confirmatory circumstance at least to bring home the offence of murder against Allah Ditta appellant/convict. The medical evidence in this case clearly shows that there were five injuries on the person of the deceased. Out of them, injury No,2 was declared to have been inflicted by a blunt weapon, whereas, all other injuries were caused by, firearm. Injuries Nos.3, 4 and 5 were grievous and dangerous to life. The death had taken place due to shock and massive haemorrhage as a result of injuries Nos.3, 4 and 5 collectively. Injuries Nos.1 and 3 were not caused by sharp-edged weapon. It is for that reason that the third accused namely Muhammad Bashir was rightly given benefit of doubt and acquitted. The question would arise whether or not the evidence disbelieved regarding one accused could be utilized against the appellants/ convicts i,e, other accused of the same occurrence. In this connection, it may be observed that there is unfortunate tendency in the rural side to throw a net wider to implicate the maximum number of persons belonging to the other side. This case also does not appear to be an exception to the aforesaid unfortunate tendency- of roping innocent persons with the actual accused. It is for that reason that the principle of sifting the grain from the chaff has gained recognition from the Courts of this country, as compared to the principle of falsus in uno falsus in omnibus. Acting on the first principle, the Court has to separate an innocent from the guilty for the proper administration of criminal justice. In the instant case, the benefit of doubt extended to the acquitted accused is also required to be further examined in respect of Muhammad Anwar appellant/convict. Though he is nephew of Allah Ditta appellant/convict who is shown to have participated in the occurrence while armed with a carbine of similar nature as was carried by him (Anwar) at the time of occurrence but the motive was basically against Allah Ditta appellant/ convict as compared to Muhammad Anwar appellant/convict. Even otherwise, during the investigation at one stage, he was also found innocent by a senior police officer namely Rana Rashid, D.S.P. Who had directed that the accused Muhammad Bashir (acquitted accused) and Muhammad Anwar i,e, the appellant/convict be placed in column No,2 and that Allah Ditta appellant/convict be only challaned for the murder of the deceased Munshi Khan. It is in pursuance of finding of Rana Rashid, D.S.P. That names of the appellant/convict Muhammad Anwar and Muhammad Bashir (acquitted accused) were placed in column No,2 of the report prepared under section 173, Cr.P.C. Though the police opinion is not binding on the Courts but since it is conducted by an agency responsible for coming into contact with the, parties at the initial stages of the case when the memories are fresh in the mind of the witnesses and the people concerned, therefore, a due weight is to be given to such finding, if there are additional attending circumstances in support of such version of the police. In the instant case, as pointed out above, the immediate motive was with Allah Ditta appellant/convict whose father was allegedly murdered by the complainant side which was arraigned and acquitted. The possibility of false implication of Muhammad Anwar appellant/convict could not be ruled out particularly when he had been found innocent by the police, as pointed out above. It is also very doubtful that Muhammad Anwar appellant/convict would fire at the deceased when the latter had fallen down after receiving fire of Allah Ditta i,e, the main culprit. It is also questionable that Muhammad Anwar appellant would also select the same part of the body of the deceased which was injured with the fire made by Allah Ditta appellant/convict. Although the Medical Officer has stated that, injuries Nos.4 and 5 (allegedly attributed to Muhammad Anwar appellant/convict) on the person of the deceased could not be caused by one fire shot but this is an opinion of the expert which cannot have a binding effect if otherwise, it is not in consonance with the natural course of conduct. As pointed out above, it would not be worth-while for Muhammad Anwar appellant to fire at the deceased who had already fallen down after receiving fire from Allah Ditta appellant/convict and secondly, it would be quite unusual that he would choose the same part of body of the deceased which was injured by Allah Ditta i,e, the main culprit. In such a situation, the participation of Muhammad Anwar in the occurrence also becomes reasonably doubtful because it would be quite probable in the ordinary course of nature that the injuries found on the person of the deceased could be inflicted by a single weapon such as carbine used by the principal accused namely Allah Ditta appellant/convict. As such, it is found that the participation of Muhammad Anwar appellant/convict in the occurrence is not proved beyond reasonable doubt. Accordingly, he is given benefit of doubt and acquitted. However, the case against Allah Ditta appellant/convict is proved beyond any doubt as already discussed. The main motive is against him and even the Investigating Agency had also no doubt regarding his participation in the occurrence and he had been found guilty throughout in all the investigations.
13. Now the question would arise whether the sentence of imprisonment for life was adequate under the given situation. In this context, the reference to the F.I.R. Would show that its bare perusal does not indicate any immediate cause for the occurrence. As such the origin of the occurrence remains shrouded in mystery and there is plethora of case-law that in such cases, the capital punishment should be avoided and the alternate sentence for life imprisonment should be preferred. Resultantly, Allah Ditta appellant was rightly given the imprisonment for life for the reasons given above which are different than the reasons given by the learned trial Judge.
14. In view of the above discussion, the appeal is partly accepted to the extent of Muhammad Anwar appellant/convict who is given the benefit of doubt and acquitted. He shall be set at liberty at once if not required in any other case. The appeal to the extent of Allah Ditta appellant/convict is, however, dismissed and his conviction and sentence used sections 302, P.P.C., as awarded by the learned trial Judge is maintained. He shall have the benefit of section 382-B, Cr.P.C. As given to him in the impugned judgment.
' In view of the foregoing decision in the appeal, the revision petition has no merit and the same is dismissed.